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2019 DIGILAW 683 (GUJ)

MISTRY CHIMANLAL BHOGILAL v. STATE OF GUJARAT

2019-07-03

UMESH A.TRIVEDI

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JUDGMENT : 1. RULE. Mr.Rashesh Rindani, learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent – State. 2. This Criminal Revision Application is directed against the order dated 03.01.2019 passed by the 2nd Additional Sessions Judge, Mahesana below Exh.1 in Criminal Appeal No.94 of 2007 whereby an appeal preferred by the petitioner against judgment of conviction and order of sentence passed by learned Judicial Magistrate First Class, Mahesana vide order dated 26.10.2007 in Chief Case No.66 of 1999 convicting petitioner for an offence under Sections 408 and 477 A of the Indian Penal Code,1860 directing him to undergo simple imprisonment for one year for an offence Section 408 of Indian Penal Code along with payment of fine of Rs.5000/- and in default of payment of fine further three month simple imprisonment is ordered. Over and above that Section 477 A also the petitioner is ordered to undergo one year simple imprisonment with the same stipulation of fine and default imprisonment. Said sentence were ordered to run concurrently. 3. Since after filing the appeal, the petitioner was released on bail, he was supposed to obey order of appellate Court as and when asked to remain present. However, the petitioner defaulted in it and learned advocate who represented him declared his helplessness to contact the petitioner as petitioner was not found residing at the known address. Earlier also on conclusion of arguments in the appeal on 23.05.2016, the appeal was posted for pronouncement of judgment but thereafter, also petitioner again remained absent and therefore, arrest warrant came to be issued against him. From that day till the date of impugned order i.e. 03.01.2019 no warrant could be executed upon the petitioner nor any notice could be served on surety as both were found not residing at their known addresses. Therefore, appellate Court had no option but to dismiss the appeal for want of his presence and cancel the bail bond executed by him. 4. Mr.K.S.Kotai, learned advocate for the petitioner states that pursuant to dismissal of appeal and issuance of warrant against him, he was detained and sent to the custody from 30.04.2019. He has produced certified copy of warrant of commitment on sentence of imprisonment duly signed by the Judicial Magistrate, Mahesana. Said copy is taken on record. 4. Mr.K.S.Kotai, learned advocate for the petitioner states that pursuant to dismissal of appeal and issuance of warrant against him, he was detained and sent to the custody from 30.04.2019. He has produced certified copy of warrant of commitment on sentence of imprisonment duly signed by the Judicial Magistrate, Mahesana. Said copy is taken on record. Mr.Kotai, learned advocate for the petitioner tenders an affidavit affirmed by wife of the petitioner declaring the residential address of Mahesana where he proposed to stay and staying there since long. Said affidavit is taken on record. Mr.Kotai, learned advocate further submitted that since petitioner is ordered to undergo one year simple imprisonment and two months are already over, there is no decision on merit in appeal is passed. Therefore, he requested the Court to quash and set aside the order passed by the appellate Court dismissing his appeal for want of his presence and directing the appellate Court to hear it on merit within stipulated time and on any condition that may be imposed by this Court. 5. Mr.Rashesh Rindani, learned APP submitted that though warrant was issued against the petitioner in the month of May, 2016, it could not be executed upon him for about three years and even his surety could not be traced for service of notice about it. He has further submitted that petitioner is changing his address leaving no option for the prosecution to trace him so that he may serve out remaining sentence if at all appeal is dismissed. 6. Having heard learned advocates for the parties, it is clear that Appellate Court is empowered to reappreciate the evidence on facts as also on law. Opportunity to the convict prisoner should be given so that appellate forum can reappreciate the evidence on facts also apart from the law. Provision for appellate jurisdiction is made for scrutinizing the evidence adduced before the Trial Court whether it has been correctly appreciated or not and therefore, re-appreciation or appreciation afresh of the evidence adduced before the Trial Court is permitted by the appellate Court. When the appeal of the petitioner is not decided on merit, he can be put to terms if he fails to remain present before the Court for the purpose of proceedings with the appeal. 7. When the appeal of the petitioner is not decided on merit, he can be put to terms if he fails to remain present before the Court for the purpose of proceedings with the appeal. 7. The ends of justice would be met if order impugned dated 03.01.2019 passed by 2nd Additional Sessions Judge, Mahesana below Exh.1 in Criminal Appeal No94 of 2007 is set aside directing the Appellate Court to hear the appeal of the petitioner on its own merit without being influenced by his absence at the relevant time, on terms and condition hereinafter provided. 8. The impugned order as aforesaid is quashed and set aside on condition that petitioner deposits Rs.25,000/- as cost before the Appellate Court within a week from today. On payment of cost, Appellate Court shall pass an order of bail pending appeal on suitable terms and condition which found favour with the Appellate Court as the petitioner has successfully avoided hearing of the appeal for three years without even service of arrest warrant. The Appellate Court shall see that an appeal is heard on merit seeking presence of the petitioner, as and when required, conditions suitable thereto imposed upon him while releasing on bail. Appellate Court is free to impose appropriate conditions so that presence of the petitioner can be secured. 9. Rule is made absolute. Direct service is permitted TODAY.